Powell v. Risser

99 A.2d 454, 375 Pa. 60, 1953 Pa. LEXIS 437

• Court: Supreme Court of Pennsylvania
• Decided: October 5, 1953
• Docket: Appeal, 83
• Status: Published

Opinions

Opinion by

Mr. Justice Arnold,

The plaintiff, Powell, brought this action of trespass to recover damages for personal injuries to his hands, alleged to have been sustained by reason of the improper conduct of Dr. Mark Risser, Dr. Norman Daley and Dr. Harry F. Hoffman. The court below entered a nonsuit as to Dr. Hoffman, who was superintendent of the Allentown State Hospital. The plaintiff did not appeal from the refusal to take off the nonsuit. A verdict was returned against Dr. Risser and Dr. Daley, on which judgment was entered, and the defendants appealed from the refusal of their motion for judgment n.o.v.

The plaintiff was admitted as a patient to the Allentown State Hospital (for the insane) in September, 1943, suffering from a mental illness, to wit manic depressive psychosis. He was about 19 years of age and physically sound. About May 1, 1946, the plaintiff escaped from the hospital and was returned by the police on the following day. He was brought to the hospital in a manic state, violent, threatening to run away and liable to injure himself and others. His physical condition was good.

The illness from which plaintiff was suffering is characterized by fluctuations from periods of depression, worry, loss of weight, to periods of over-activity, lack of restraint and excitability. Part of the time the patient may seem entirely normal. His emergence from one mood to another may occur suddenly. During the over-active period the patient, in common language, is a raving maniac. Plaintiff’s record at the hospital was one of furloughs in the charge of his family, stealing and wrecking of automobiles, and return from such escapades to the hospital by the police. On May 2, 1946, when the plaintiff was brought back to the hospital by the police, Dr. Risser directed the supervisor of nurses, Buck, to administer a wet pack. Having done so, the supervisor of nurses reported to Dr. Risser that the plaintiff’s physical condition was all right, but that he was violent and threatening, and that there was no way of keeping him except in the pack. Thereupon Dr. Risser ordered a second wet pack. Later the supervising nurse reported to Dr. Risser that the plaintiff was still violent and threatening, but that his physical condition was good. Dr. Risser ordered the wet pack treatment continued so long as the patient was violent and maniacal, providing his physical condition remained good. All told three wet packs were administered by the nursing personnel and the attendant, the last pack being administered on May 3. These wet pack treatments differed in no way from the accepted and standard practice, not only in the Allentown State Hospital but in all other mental institutions operated and maintained by the Commonwealth. Such treatments are the most modern and humane method yet devised for the restraint of violent, raving and desperate patients.

Following the administration of the wet pack treatments the plaintiff’s hands were considerably affected, so that he now has a 60% impairment of their use.

The wet pack treatment is administered to patients whose mental condition renders them violent, and is both a means of calming them emotionally through the therapeutic effects of warm water and of restraining them from violence. Such treatment is administered in the following manner: Sheets numbering usually six are immersed in water. They are then wrung dry, the arms are separately wrapped, and the sheets then wrapped around the body and the arms and legs, so that the patient is completely swathed in sheets from his head to the tips of his toes. Two sheets are used as ties, one placed about the body and arms in the region of the elbows and tied, and the other is tied above and below the knees. The patient is able to move his limbs but he cannot free himself. He is then immersed in a tub of water, the temperature of which is controlled by a thermostat at about 94 to 96 degrees. He is kept in the water for a period of approximately six hours. He is then taken out, the sheets are removed, and he is bathed and the body rubbed with oil or grease. Fresh sheets are then applied and he is again immersed in the water. Generally the patient receives a series of these treatments, the number and duration of which depend upon his mental and physical condition.

During the time of the wet pack treatment proper practice requires the nursing personnel to note the temperature of the patient, the pulse rate and respiration, and make report to the physician of the patient’s condition if anything unusual occurs. While the treatments are given only on order of the physician, their administration, — that is, wrapping of the patient in sheets, the immersion in water, check of water temperature, pulse, respiration, and observation of the patient and reporting thereon to the physician, — is strictly a nursing procedure, and is performed only by the nurses and attendants. At no time are physicians present or required to be present unless the reports from the nurses and attendants indicate a necessity therefor.

About 24,000 of the wet pack treatments are administered in the Allentown State Hospital every year without any injurious effect.

Dr. Goshorn was plaintiff’s expert on the subject of the method of administering wet packs. Both on direct and cross-examination he reiterated that it is entirely a nursing procedure, and that the physician is never present or required to be, does not observe the patient, but relies on reports from the nurses. He testified that the mental condition of the plaintiff might require continuing the treatment without regard to the physical condition. His opinions were based on 23 years of experience. Not a single person, physician or layman, appeared to contradict the evidence, or to deny that it was the standard practice, or to state that it was improper and not in accordance with the best practices of the profession.

The duties imposed by law on the defendant physicians are to employ such reasonable shill and diligence as is ordinarily exercised in their profession, giving due regard to the advanced state of the profession at the time of treatment: Wohlert v. Seibert, 23 Pa. Superior Ct. 213, 218; English v. Free, 205 Pa. 624, 625, 55 A. 777; Stemons v. Turner, 274 Pa. 228, 231, 117 A. 922; Duckworth v. Bennett, 320 Pa. 47, 51, 181 A. 558.

It has been uniformly held that expert testimony is necessary to establish negligent practice in any profession: Wohlert v. Seibert, 23 Pa. Superior Ct. 213, 216; Bierstein v. Whitman, 360 Pa. 537, 541, 62 A. 2d 843. What the lower court decided and what was determined by the jury was not whether the defendants had been guilty of negligence in following the well-recognized and established mode of treatment, but rather whether the mode of treatment was proper. This, in the face of testimony produced by the plaintiff’s own experts showing that the treatment and methods employed were of long standing both in the Allentown State Hospital and elsewhere. Thus, the court permitted the jury of laymen, without knowledge of these practices, to say that a treatment was improper which expert witnesses said was in accordance with the accepted practice.

In Bierstein v. Whitman, 360 Pa. 537, 541, 542, 62 A. 2d 843, the action was for malpractice of a dentist in fracturing the jaw of a patient during the extraction of a tooth. This Court said: “ ‘All that is shown is that the defendant did certain things and failed to do other things. Bnt whether a careful, skilful, and diligent practitioner would have done otherwise, we do not know’. The plaintiff concedes the accuracy of the principle of law thus applied. It is argued, however, that a jury of laymen under the present facts could find negligence in the same manner as in any other tort action. It is urged that a lay jury might find that plaintiff’s jaw was found to have been broken, and from this fact might conclude that defendant had used unwarranted force and was therefore negligent. We disagree with such doctrine . . . Negligence may not be inferred by laymen merely because the jaw was found to have been broken. A jaw could be broken even though there was no lack of care or skill by the dentist. Expert testimony is necessary to establish negligent practice in any profession: . . . Wigmore on Evidence, Third Edition, Vol. VII, Sec. 2090, p. 453. As plaintiff failed to offer any expert witness to establish the measure of professional skill required of a dentist in extracting a tooth, she did not meet the burden of establishing, by the weight of the evidence, that defendant failed to treat her with reasonable and ordinary professional skill: [citing cases] . . . The record discloses no testimony as to the standard of care required under the circumstances and such burden was therefore not met by plaintiff.”

In the instant case the plaintiff failed to show by any expert testimony just what Dr. Risser should have done or refrained from doing. From the circumstances that a verdict was recovered the inference is that Dr. Risser should have been present, that he should have examined the plaintiff between each pack and during the course of them. The testimony of all the experts called on either side of the case was that this requirement was not a part of the standard and accepted practice. .

It is also the general rule that a physician is not liable for injury to a patient where such occurs as a result of nursing procedures: Shull v. Schwartz, 364 Pa. 554, 556, 73 A. 2d 402, in which case the defendant surgeon performed an operation on the wife-plaintiff. Later a hospital intern was directed by the surgeon to remove the stitches and in doing so failed to remove two of them. This Court on appeal affirmed the principle that the liability of the defendant does not apply to treatment administered by floor nurses and interns in the regular course of service furnished by a hospital, and that as to all such care and attention the nurses and interns would clearly be acting exclusively on behalf of the hospital and not as assistants to the surgeon.

In Stewart v. Manasses, 244 Pa. 221, 90 A. 574, the defendant was a family physician and procured the admission of the plaintiff to a hospital and assisted the chief surgeon in the operation. After the operation plaintiff was removed from the operating room to the recovery rbom where nurses had prepared a bed and negligently left in it a hot water bottle. When the plaintiff was placed in the bed she was burned or scalded. This Court held that the plaintiffs ease was without any support, and that the injury was caused by the negligence of the hospital nurses whose work the defendant was under no duty to supervise, and for whose negligence he was not responsible. See also Hohenthal v. Smith, 114 P. 2d 494.

Since, to make out a case, the plaintiff must show by expert testimony that there was a deviation from proper practices in the administration of the wet packs, and since he failed to do so, the doctrine of exclusive control is not in this case. Cf. Kelly v. Yount, 135 Pa. Superior Ct. 528, 531, 7 A. 2d 582 ; Bierstein v. Whitman, 360 Pa. 537, 62 A. 2d 843.

The lower court therefore erred in imposing such a duty upon him in the face of the evidence in the case. There was also a wide variation in the opinions of plaintiff’s experts as to what caused the plaintiff’s injuries. Cf. Mudano v. Phila. Rapid Transit Co., 289 Pa. 51, 137 A. 104.

As to the defendant, Dr. Norman Daley, the allegation was made that after the plaintiff had undergone the wet pack treatments his hands were in bad shape from blisters, some of which had opened and some of which had to be opened. Dr. Daley first saw the plaintiff at least four days¹ after the last wet pack was administered. Dr. Daley is alleged by the plaintiff to have opened several blisters with a pocket knife taken from his pocket. Assuming this to be true, there is no evidence that the use of the non-sterile knife could have produced the injuries to the plaintiff, or indeed contributed to them. The plaintiff’s only expert on this phase of the case, Dr. Mareks, stated that he did not “believe that infection had a thing to do to contribute to the development of the deformity [of the plaintiff’s hands]”; and testified that “the use of unsterile instrument ... to open blisters as mentioned, might contribute or be a contributing cause to infection, but not a contributing cause to the deformity this man has.” (Italics supplied). The testimony of Dr. Mareks was plainly insufficient to charge Dr. Daley with negligence in that it failed to show the connection between the injury resulting from the negligent act and a later-condition. In Monahan v. Seeds & Durham, 336 Pa. 67, 71, 6 A. 2d 889, this Court said: “When, in cases of this class, expert testimony is relied on to show the connection between an alleged cause and a certain result, it is not enough for the doctors to say simply that the ailment in question might have resulted or ‘most probably’ came from the assigned cause, or that the one could have brought about the other; they must go further and testify at least that, taking into consideration all the attending data, it is their professional opinion the result in question came from the cause alleged: Vorbnoff v. Mesta Machine Co., 286 Pa. 199; Elonis v. Lytle Coal Co., 134 Pa. Superior Ct. 264.” It therefore follows that a verdict cannot be sustained against Dr. Daley.²

The judgment is reversed and judgment is hereby entered for Dr. Mark Risser and Dr. Norman Daley notwithstanding the verdict. ■

1 Under the evidence it is difficult to tell what length- of time intervened between the last wet pack and the visit to Dr. Daley.

2 Incidentally, no joint verdict could have been had against Dr. Risser and Dr. Daley. Dr. Daley’s alleged negligence was not concurrent with the alleged negligence of Dr. Risser. Dr. Daley, therefore, could not be held-for any of the acts of Dr. Risser. See Howard v. Union Traction Company, 195 Pa. 391, 45 A. 1076, and Wiest v. Electric Traction Company, 200 Pa. 148, 49 A. 891, where this Court said, at page 152: “A joint verdict may ... be rendered against such of the defendants as are jointly liable. But, if no concert of action is shown, and, therefore, no joint tort, and the case is one of separate tort or torts, upon the part of one or of several defendants, the action is not sustained, and there should be no verdict against any one. In a suit for a joint tort there should be no recovery upon proof of one or more separate torts. When a joint tort is charged, a joint tort must be proved, in order to sustain the action. The allegation and the proof must agree in cases of tort, as in other cases.” See also Shearman & Redfield on Negligence, revised edition, Vol. 1‘, §148.